Civ Pro

Question 1

Personal Jurisdiction

Answer 1

Courts power over the parties.

The exercise of personal jurisdiction must fall within a state statue and exercise of personal jurisdiction must be constitutional.

Question 2

States authorize jurisdiction over defendant who:

Answer 2

1. is present in forum state
2. is domiciled in forum state
3. conducts systematic and continuous business in state;
4. consents to jurisdiction; or
5. commits an act covered by long arm statute

Question 3

Due process standard for personal jurisdiction

Answer 3

Defendant must have such minimum contacts with the forum such that the exercise of personal jurisdiction is fair and reasonable!!!!

Question 4

Specific Personal Jurisdiction

Answer 4

Cause of action relates to defendants conduct with the forum; did the defendant purposefully avail himself of benefits/protections of state law / anticipated being brought into state court?

Question 5

General Personal Jurisdiction

Answer 5

When cause of action is unrelated to the defendants contact with the forum; court has discretion to hear the case if there is general PJ.

Question 6

Corporation/Business subject to general personal jurisdiction

Answer 6

In the home state where it’s incorporated AND state of PPB

Unincorporated business (partnership) is a citizen of every state/country of all it’s members

Question 7

Individual subject to general personal jurisdiction in:

Answer 7

Home where domiciled or where served with process in the state

Question 8

If subject to specific jurisdiction, fairness factors court considers:

Answer 8

1. Burden on defendant and witnesses
2. State’s interest
3. Plaintiff’s interest

Question 9

Rule 4 Notice/Service of Process on Individual

Answer 9

1. Personal Service
2. At defendants usual above with someone of suitable age/discretion who resides there
3. Service on agent
4. Under method allowed by state

Question 10

Rule 4 Notice/Service of Process on Business/Organization

Answer 10

1. Delivering to an officer a copy of process
2. Using method permitted by state law where federal court sits, or where service is being made

Question 11

Rule 4 Notice/Service of Process in a Foreign country

Answer 11

1. A method allowed by international agreement, Hague Convention
2. As directed by American court;
3. Method allowed by foreign countrys law
4. Personal service in foreign country
5. Mail sent by clerk of American court, with a signed receipt

Question 12

Clerk can authorize default if:

Answer 12

1. Claim for sum certain
2. Defendant hasn’t appeared/answered

Otherwise, it will be the judge entering the default judgment

Question 13

Diversity of citizenship Jurisdiction

Answer 13

1. Complete diversity = every defendant must be of diverse state citizenship from each plaintiff

aka between citizens of different states or between a citizen of US state and foreign nation

2. Amount in controversy exceeds $75K (good faith claim is what matters)

*Determined when case is filed
*If ACTUAL Judgement renders less than $75K, will NOT destroy diversity

Question 14

Supplemental Jurisdiction

Answer 14

1. Must be one claim with original jurisdiction (diversity and/or federal question)
2. Supplemental jurisdiction must arise from a common nucleus of operative fact as the original jurisdiction such that the claims should be tried together

supplemental jurisdiction CANNOT override diversity jurisdiction (UNLESS brought by the defendant)

if same transaction/occurence = common nucleus test is met

*never use supplemental jurisdiction if new claim qualifies under FQ or diversity

*taking additional claim under supplemental jurisdiction is always at discretion of court

Question 15

Removal

Answer 15

DEFENDANT transfers the court from state court to federal court, so long as subject matter jurisdiction exists!

Must remove NO LATER THAN 30 days after service of process

For diversity cases:
- can’t be removed if defendant is citizen of forum state
- if it’s been more than one year since filed in state court

For FQ:
- Federal defense is not sufficient

For Removal: the venue is proper where the federal court “embraces” the state court; don’t confuse with the normal venue rules

Question 16

Remand

Answer 16

PLAINTIFF can move to remand back to state court.

If reason other than SMJ; only has 30 days.

If SMJ; can remand anytime

Question 17

Federal Question Jurisdiction

Answer 17

Plaintiffs claim must “arise under” federal law.

Well-pleaded complaint rule: is the plaintiff enforcing a federal right?

Question 18

Venue

Answer 18

Proper in federal district court where any defendant resides (if all defendants reside in the same state), or where a substantial part of any events/omissions occurred, or where a substantial part of property is situated.

If defendants residents of differenct states –> look to events/omissions/property.

Other fallback: where any defendant subject to personal jurisdiction

VENUE CAN BE WAIVED

Question 19

Transfer when original court was PROPER

Answer 19

Court can order based on convenience of parties and witnesses/interests of justice.

Carries the law of the transferor court (including choice of law) to transferee court unless the transfer was ordered under forum selection clause

Question 20

Transfer when original court was IMPROPER

Answer 20

Court can transfer to venue where case could have been brought or dismiss.

Law of transferee court applies

Question 21

Erie Doctrine

Answer 21

Claims in diversity cases will be based on state law.

If federal law conflicts with state law –> federal law presumptively applies so long as valid.

If no federal law –> judge applies state law if issue is substantive
1. conflict/choice of law
2. elements of claim/defenses
3. statute of limitations
4. standards for granting new trial because jury award was excessive/inadequate

*substantive issues - is it outcome determinative/ will it change the outcome of the case?

Question 22

Complaint

Answer 22

Notice of plaintiffs claim
1. statement of SMJ
2. short and plain statement showing relief
3. demand for relief

*sufficient facts to support plausible claim; if fraud/mistake/special damages –> pleaded with particularity

Question 23

Defendants pre-answer motions Rule 12

Answer 23

1. Motion for more definite statement
2. Motion to strike
3. any waivable defenses

within 21 days unless waived process than 60 days

*remainder of defenses on following cards)

Question 24

Defendants Answer

Answer 24

1. Specifically admits/denies allegations of complaint
2. Set out all affirmative defenses
3. 21 days after service;
   - If rule 12 motion made –> 14 days after denial of motion

Question 25

Rule 12 waivable defenses if NOT put into first response

Answer 25

3 P's and a V 1. lack of personal jurisdiction 2. Improper venue 3. Improper service (papers) - defects in documents and contents 4. Improper service of process - defective way of serving process

Question 26

Rule 12 defenses that can be raised at any time

Answer 26

1. failure to state a claim (made as late as trial) 2. lack of SMJ (anytime)

Question 27

Compulsory counterclaim

Answer 27

arises out of same transaction or occurrence; must be plead by the D

Question 28

Permissive counterclaim

Answer 28

Any other counterclaim; does not arise from same T/O -- doesn't have to be filed

Question 29

Amendment "Relates Back"

Answer 29

When joining claim not originally asserted if --> pleading concerns the same conduct, transaction, or occurrence as the original pleading When changing a Defendant --> relates back if: 1. amendment concerns same, conduct transaction/occurence as original 2. D has knowledge of the case 3. D knew or should have known that bur for a mistake, she would have been named originally

Question 30

Crossclaims

Answer 30

claims against a co-party that arise from same transaction/occurence *okay if violates diversity as long as same t/o*

Question 31

Compulsory joinder / indispensable party

Answer 31

Court cannot accord complete relief without absentee; they have an interest that will be impaired by lawsuit and/or parties at substantial risk for multiple/inconsistent judgments without absentee

Question 32

Class Action Requirements

Answer 32

1. Numerosity - too many class members for practicable joinder 2. Commonality - some issue in common to all class members, resolution will generate answers for everyone 3. Typicality - class reps claims are typical of the class 4. Representative will fairly/adequately represent the class *Diversity of class rep = determines whether diversity exists in class action

Question 33

Class Action Fairness Act; allows federal court to hear the case if:

Answer 33

1. At least 100 members; 2. Any class member, not just the representative, is of diverse citizenship of any defedant; 3. Aggregated amount in controversy exceeds $5 million

Question 34

Intervention as of right

Answer 34

P or D brings himself into the case "of right" if absentee's interest may be harmed if she's not joined and that interest is not adequately represented by current parties

Question 35

Permissive intervention

Answer 35

When there is a common question of law or fact --> permissive/discretionary with the court

Question 36

Impleader

Answer 36

Brings nonparty into case for indemnity or contribution indemnity (shifts liability completely) contribution (shifts pro rata)

Question 37

Disclosure required without a discovery request (Rule 26)

Answer 37

1. Initial disclosures - persons/things that support claims or defenses (all information reasonably available that is not privileged) 2. Disclosure of expert testimony - testifying experts and their reports 3. Pretrial disclosures - trial witnesses, depositions used at trial/exhibits 4. Relevant insurance agreements (want to make sure the $$ is there) 5. Computation of damages 6. Documents/objects/electronically stored data that might be used to support for claim/defense 7. Names/addresses/phone numbers of people who may have discoverable information about claim/defense

Question 38

Scope of disclosure/discovery

Answer 38

Any relevant non privileged matter that is proportional to the needs of the case (includes identity of persons having knowledge of relevant facts). - costs of discovery/needs of the case will also be considered a. trial prep materials --> if substantial need and to avoid undue hardship b. expert witnesses: - may depose testifying experts - consulting experts need not be disclosed unless exceptional circumstances *Without waiting for discovery request, party must provide copies/descriptions of documents that are in the disclosing party's possession or control AND that the party may use to support its claims/defenses.

Question 39

In camera inspection

Answer 39

Court could order disclosure of any information that is relevant to the subject matter of the current litigation; Court would have to make in camera inspection of the file and redact any information that is irrelevant to the current litigation

Question 40

Oral depositions

Answer 40

Both nonparties and parties can be deposed; nonparties must be subpoenaed. Written deposition -- questions to deponent submitted in writing

Question 41

Interrogatories

Answer 41

Written question to parties answered under oath; NEVER to nonparties answered within 30 days

Question 42

Request to Produce

Answer 42

Asks party to make available for review/copying documents like ESI or permit entry on designated property to inspect/measure/etc.

Question 43

Request for Admission

Answer 43

Written request for someone to admit as to truth/genuineness of matter or document

Question 44

Motion to Compel Disclosure

Answer 44

Must certify good faith attempt to resolve dispute with opponent before motion to compel can be granted

Question 45

Failure to Comply with Court Order

Answer 45

Could receive sanctions No sanction if was substantially justified/unjust

Question 46

Failure to disclose/supplement

Answer 46

Cannot use material unless substantially justified/harmless Could receive sanctions

Question 47

Failure to admit

Answer 47

May have to pay expenses for proving matter unless there's a good reason for not admitting

Question 48

Failure to attend own deposition/serve answers to interrogatoreis/respond to request for inspection

Answer 48

1. Must certify good faith attempt to resolve dispute with opponent 2. Sanctions 3. Must seek order of protection to avoid sanctions if request was objectionable

Question 49

Work product protection

Answer 49

Entitled to qualified immunity from discovery (1) material created in anticipation of litigation is protected; need not be generated by lawyer *could be subject to discovery if substantial need and undue hardship

Question 50

Work Product Discoverable if

Answer 50

Opposing party shows: substantial need and undue hardship *mental impressions/opinions/legal theories/conclusions ALWAYS protected* - would have to be redacted GOOD VERBIAGE TO USE IN DECIDING IF WORK PRODUCT APPLIES = whether there was any indication that any litigation was threatened or that any impressions/trial strategy of the Authority's attorney was involved in making of the report

Question 51

Pretrial conferences

Answer 51

Rule 26(f) conference of parties - planning for discovery (wide discretion for virtually any matter including settlement) / proposed discovery plan Rule 16(b) scheduling conference to develop roadmap of case - Sanctions if failure to attend/obey order

Question 52

Voluntary Dismissal Without Court Permission

Answer 52

P can withdraw before the D serves an answer or motion for summary judgment First - without prejudice; can refile Second - with prejudice; cannot refile unless court consents

Question 53

Voluntary Dismissal With Court Permission

Answer 53

Anytime after answer/motion then court permission is required

Question 54

Right to Jury Trial 7th Amendment

Answer 54

At least 6, no more than 12 If fact underlies both law/equity --> jury decides facts before judge decides law Jury instructions: objections must be made before jury retires/on the record **Jury Demand IS REQUIRED; otherwise will be a BENCH trial

Question 55

Motion for Summary Judgment Rule 56

Answer 55

No genuine dispute on a material fact; and entitled to judgment as a matter of law = NO TRIAL necessary Appropriate at any time until 30 days after close of discovery MADE BEFORE TRIAL *can be granted partially if there are multiple claims*

Question 56

Judgment as a Matter of Law (JMOL)

Answer 56

Motion made AT trial - Evidence viewed in light most favorable to nonmoving party - Standard: evidence is such that a reasonable jury would not have legally sufficient basis to find for the party on that issue - Witness credibility is NOT considered

Question 57

Renewed Motion for Judgment as a Matter of Law (RJMOL or JNOV)

Answer 57

Same standards as JMOL; have to file JMOL first on same grounds. Occurs AFTER trial only

Question 58

Motion for New Trial

Answer 58

Some error occurred at trial - judge gave erroneous instruction; - juror misconduct - new evidence discovered that couldn't have been discovered before - damages inadequate/excessive - verdict goes against evidence presented *If Motion for new trial is made with RJMOL, and renewed motion is granted -- the judge must rule hypothetically on a new trial motion

Question 59

Remittur/Additur

Answer 59

When jury damages are excessive/inadequate Remittur: allowed in federal court - court offers P to remit part of damages or go through a new trial Additur: NOT allowed in federal court - court offers D to add to damages or go through with new trial

Question 60

Final Judgment Rule

Answer 60

Losing party has right to appeal if the court's order is a final judgment. Time for appeal - generally 30 days *certification of class act = immediately reviewable*

Question 61

Interlocutory Appeals (nonfinal) are reviewable under Interlocutory Appeals Act when:

Answer 61

1. District judge certifies that it involves a controlling issue of law 2. There is a substantial ground for difference of opinion; 3. Appeal would materially advance conclusion of case; and 4. At least 2 appellate judges agree to appeal

Question 62

Collateral order rule

Answer 62

Appellate court has discretion to hear appeal on issue if that issue: 1. distinct from merits of case; 2. involves important legal question; 3. Is essentially unreviewable if parties await final judgment

Question 63

Claim Preclusion / Res Judicata

Answer 63

Final judgment on the merits bars claimant from asserting the same claim in later action. 1. Same claimant suing the same defendant 2. Valid, final judgment on the merits 3. Case 1 and Case 2 must be SAME claim (very fact specific) - majority: if same t/o then same claim

Question 64

Issue Preclusion / Collateral Estoppel

Answer 64

Judgment binds parties in subsequent actions between them as to issues actually litigated and essential to judgment in first action. 1. Case 1 ended in valid, final judgment on merits 2. Same issues actually litigated and determined in Case 1 3. Issue was essential to judgment in Case 1 4. Only against someone who was a party or in privity with a party in case 1 5. Only used by someone who was a party or in privity with a party in case 1

Question 65

Nonmutual Offensive issue preclusion -- factors to determine if issue preclusion can be used when plaintiff is a party in case 2 but was not a party in case 1

Answer 65

1. Issues identical? 2. Final judgment on merits? 3. Did party against whom judgment is sought have a fair opportunity to be heard? 4. Not unfair/inequitable to apply issue preclusion?

Question 66

Federal Interpleader Act Special Rule for subject matter jurisdiction, personal jurisdiction & venue

Answer 66

Interpleader can be brought if any two claimants are citizens of different states and the AIC is $500 or more - Complete diversity is not required

Question 67

Preliminary Injunction

Answer 67

Preserves status quo until hearing on the merits - D must have been given notice AND opportunity to be heard before decision is made

Question 68

Temporary Restraining Order (TRO)

Answer 68

Preserves status quo immediately - Party seeking must show irreparable harm - Generally requires notice

Question 69

Amending Pleadings

Answer 69

1. Once as a matter of course within 21 days 2. After 21 days, requires consent of court Rule 15(c) - Improper Names in Pleading - Mistaken Party - D must have received notice AND knew or should have known the action could have been brought against them

Question 70

Rule 11

Answer 70

Attorney certifies document is not being prevented for improper purpose (harassment)

Question 71

Sanctions

Answer 71

Prior to filing motion for sanctions, party must give opposing party opportunity to withdraw/correct offending document

Question 72

Standards of Appeal

Answer 72

- Matters of law = de novo standard - Matters of judicial discretion reviewed on an abuse of discretion standard - Reasonable jury standard used if claim is that jury decided case incorrectly

Question 73

Time Limit for Motion for Relief from Judgment

Answer 73

For grounds like: mistake, inadvertence, surprise, neglect, newly discovered evidence --> must be made WITHIN ONE YEAR Clerical errors: can be made ANYTIME All other grounds: within reasonable time

Question 74

A party making a motion for judgment on the pleadings and accompanying it with an affidavit/other matters outside the pleadings, may actually be making what type of motion?

Answer 74

Probably trying to make a motion for summary judgment (using wrong label). Court is expressly authorized to treat motion as summary judgment, giving parties full opportunity to present material relevant to summary judgment. Under summary judgment, a party opposing the motion may present reasons why they need additional time to submit affidavits/depositions.